MC v Disclosure and Barring Service

An appeal against a barring decision under section 4(2) of the Safeguarding Vulnerable Groups Act 2006 is confined to mistakes of law and mistakes in findings of fact on which the decision was based. The Upper Tribunal must not substitute its own assessment of the evidence unless such a mistake is established. A value judgment about propensity, risk or the appropriateness of barring is for the Disclosure and Barring Service, subject to legal and factual error. A factual error is immaterial where the Service would have reached the same barring decision on other findings. Serious recent breaches of professional caring duties may independently justify barring, even where earlier reasoning about violence is flawed.

The Disclosure and Barring Service decided on 31 August 2022 to include MC in the barred lists for working with children and vulnerable adults. It relied on two recent incidents in which he left vulnerable adults unsupervised in a vehicle and left a care-work shift early, together with older incidents of violence in 2009 and 2012.

MC appealed under section 4(2) of the Safeguarding Vulnerable Groups Act 2006, challenging the adequacy and rationality of DBS’s findings concerning propensity to violence, pro-violence beliefs and multiple violent incidents. The central issue was whether any mistake of fact or law justified setting aside the barring decision, including whether any error concerning the older incidents was material.

1. The appeal was dismissed. The Upper Tribunal confirmed DBS’s decision of 31 August 2022 under section 4(5) of the Safeguarding Vulnerable Groups Act 2006. The statutory appeal is limited to a mistake of law or a mistake in a finding of fact on which the barring decision was based. The appellant bears the burden of demonstrating such a mistake. The Tribunal cannot make its own assessment of the written evidence unless a qualifying mistake is established: PF v DBS [2020] UKUT 256 (AAC); Disclosure and Barring Service v JHB [2023] EWCA Civ 982.
2. A finding of fact may be wrong even where evidence supported it or it was not irrational. A finding may also be shown to be wrong by evidence heard by the Upper Tribunal but not placed before DBS. The distinction between a finding of fact and a value judgment can be difficult: Disclosure and Barring Service v AB [2021] EWCA Civ 1575.
3. The Tribunal accepted that DBS’s description of the two older incidents as involving violence on multiple occasions was doubtful. It doubted whether two incidents could properly be described as multiple incidents. That concern did not undermine the decision because the older incidents were not material to the outcome.
4. On DBS’s other findings, the April 2021 conduct amounted to a particularly serious breach of caring duties and was tantamount to neglect. The evidence showed that MC minimised its seriousness, and the conduct occurred shortly after he left another care-work shift early. Taken together, those matters entitled DBS to conclude that he failed to take his professional responsibilities seriously and posed too great a risk to children or vulnerable adults. The assessment of risk and the appropriateness of barring remained DBS’s responsibility unless its decision was legally or factually flawed: Disclosure and Barring Service v AB [2021] EWCA Civ 1575.
5. The Tribunal was satisfied that DBS would have made the same decision even if the 2009 and 2012 incidents had been ignored. Any mistake in the findings concerning those incidents therefore could not justify allowing the appeal under section 4(2)(b).

An anonymity order was made protecting MC, the two service users and their families.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and confirmed DBS’s decision of 31 August 2022 under section 4(5) of the Safeguarding Vulnerable Groups Act 2006.